When Can a Judge Look Ahead?
When ordering a parenting plan in a Florida divorce or paternity action, the judge generally must stick to the present. The judge must make determinations based on findings about your child’s present best interests. That means avoiding “prospective based determinations” about your child’s future best interests. But what about events reasonably certain to occur? Can you and a judge look ahead?
Exception: No Crystal Ball for Events Reasonably Certain to Occur
An exception to this general rule is judges may allow a timesharing plan that applies the child’s best interests, as determined at the final hearing, to an event reasonably and objectively certain to occur at an identifiable time. For such predictable events, judges need no crystal ball.
Without this exception, you’d have to seek permission to modify the parenting plan after changes that inevitably occur in your child’s life, like starting school. Moreover, satisfying the requirements to get modifications isn’t easy. Read more about Florida’s extraordinary burden for modification of parenting plans.
When Is No Crystal Ball is Required?
When events are reasonably certain to occur, a judge may look ahead. For example, in a paternity case, Rivera v. Purtell, 252 So. 3d 283 (Fla. 5th DCA 2018), the trial court mistakenly concluded it couldn’t modify timesharing once the child started kindergarten. That was a future event reasonably certain to occur.
Accordingly, the court could order modification of the present 50-50 overnight timesharing, in effect while the parents lived more than 50 miles from each other, to a schedule giving dad majority overnights during the school year. But, if mom moved within 25 miles of dad’s residence by the time their child started kindergarten, the 50-50 schedule would apply.
In the Fifth District’s view, Arthur v. Arthur, 54 So. 3d 454 (Fla. 2011) only prohibits a trial court from predicting a change in a child’s best interests as of some future date or event. In contrast, for other cases, no “crystal ball” is required. Based on the child’s best interests as of trial, the judge can make conclusions about events reasonably and objectively certain to happen at a definite time.
“[W]hen crafting a timesharing plan, a trial court must be free to account for reasonably and objectively certain future events. Otherwise, the parties would be required to continuously seek permission from the court after every change that inevitably occurs in a child’s life, like starting school. We decline Mother’s invitation to interpret Arthur’s prohibition so broadly that Florida’s trial courts become de facto parents.”Rivera v. Purtell, 252 So. 3d 283, 286 (Fla. 5th DCA 2018)
For Events Reasonably Certain to Occur that Affect Support, Provide Sufficient Detail About Expenses Related to the Event.
Courts uphold prospective modifications carefully conditioned on specifically stated changes in circumstances. The changes must “virtually preclude” unfairness to either party. Kangas v. Kangas, 420 So. 2d 115 (Fla. 2d DCA 1982); Umstead v. Umstead, 620 So. 2d 1074 (Fla. 2d DCA 1993).
In Harby v. Harby, 331 So. 3d 814 (Fla. 2d DCA November 17, 2021), mom and dad signed a marital settlement agreement. They agreed, if dad wanted to sell their Florida home to pay off the mortgage, that would cut his mortgage expense and need for alimony from mom. Although dad’s selling the home was fairly certain, the expenses related to this fairly certain event weren’t fairly certain.
Automatically modifying alimony and child support for the “fairly certain event” was error without evidence specifying how expenses would change. Dad’s testimony about how his expenses could change, standing alone, didn’t “virtually preclude” unfairness to mom from the court’s modifying alimony and child support.
Conditional Provisions Not Allowed When Event Isn’t Reasonably Certain to Occur
Amiot v. Olmstead, 321 So. 3d 305 (Fla. 1st DCA 2021), in which the court struck a conditional provision the trial court included in an order modifying timesharing a condition that, if mom were to relocate back from California to within 60 miles of Bay County Florida, timesharing would revert to the original schedule the parties agreed to in their marital settlement agreement.
Snowden v. Snowden, 985 So. 2d 584 (Fla. 5th DCA 2008), in which the trial court rejected a dad’s petition to modify custody and enforce a final judgment of dissolution of marriage that provided custody would change if either parent drank alcohol or took illegal drugs while the kids were in the parent’s custody.
Conditional Provision Allowed: Expected Date Event Is Reasonably Certain to Occur
Stevens v. Stevens, 929 So. 2d 721 (Fla. 5th DCA 2006), in which a planned custody change based on an expected date-certain event, namely, dad’s finishing his tour of duty, enabled the court to modify prospectively timesharing.
Don’t all parenting plans, which govern parents’ future conduct, derive from parents’ or judges’ predictions about future events? For more about predictions, read here.
Related Blog Posts:
- Collaborative Family Law Agreements A Child’s Prospective Best Interests
- Collaborative Family Law Agreements: Parenting Plan Basics
- A Child’s Future Best Interests and Collaborative Family Law Agreements
- Children’s Best Interests: Parenting Plans Entail Prediction
- Collaborative Parenting Plans: Extraordinary Burden for Modification
- Collaborative Family Law: Florida Favors Settlement Agreements
- Collaborative Parenting Plans: Judges Must Safeguard Children
- Collaborative Parenting Plans: Anticipating Events Reasonably Certain to Occur
- Parenting Plan Modification: Enlist Court Review When Events Occur
- Collaborative Parenting Plans: How Will You Resolve Future Impasses?
- Can Contingencies Parents Build into their Parenting Plans Be Modifications?
- Florida Parenting Plans: Agreeing to a Different Burden for Modification